Supreme Court of India
J.V. BAHARUNI & ANR.versusSTATE OF GUJARAT & ANR.
- Citation
- 2014 INSC 732
- Decided
- 16 October 2014
- Disposal
- Appeal(s) allowed
Holding
A de novo trial is not warranted where the trial was conducted as a regular summons case; Section 326(3) does not apply, and the successor magistrate may rely on the evidence recorded by the predecessor.
Summary
The appellants were convicted under Section 138 of the Negotiable Instruments Act for issuing dishonoured cheques. The trial magistrate recorded evidence and a successor magistrate delivered the judgment, leading the Gujarat High Court to order a de novo trial on the ground that the case was a summary trial and Section 326(3) of the CrPC barred the successor magistrate from acting on the earlier record. The Supreme Court examined whether the proceedings were truly summary in nature and whether Section 326(3) applied. It held that the trials were conducted as regular summons cases, with extensive evidence, cross‑examination and a detailed record, and therefore Section 326(3) did not preclude the successor magistrate from using the evidence. Consequently, a de novo trial was not justified. The Court set aside the High Court’s remand orders and directed the matters to be returned to the High Court for disposal on their merits.
Issues considered
- The trial of offences under Section 138 NI Act must be conducted as a summary trial under Section 143 of the Act or as a regular summons trial.
- Whether Section 326(3) of the CrPC bars a successor magistrate from acting on evidence recorded by a predecessor in a summary trial.
- Whether the High Court was justified in remanding the cases for a de novo trial.
- When may a de novo trial be ordered in offences under the NI Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 260, s. 262, s. 263, s. 264, s. 265, s. 326(1), s. 326(3), s. 461, s. 465
- Constitution of Indias. Article 21
- Negotiable Instruments Act, 1881s. 138, s. 143, s. 144, s. 145, s. 146, s. 147
Subjects
Negotiable Instruments ActSection 138summary trialde novo trialSection 326 CrPCspeedy trialfair trialcriminal procedureappellate jurisdictionmagistrate transfer
Judgment
[2014] 10 S.C.R. 106·1
J.V. BAHARUNI & ANR. A
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 2221 of 2014)
OCTOBER 16, 2014
B
[RANJANA PRAKASH DESAI AND N.V. RAMANA, JJ.)
Negotiable Instruments Act, 1881:
s.138 rlw s.143 - Acquittal by Magistrate - High Court c
remanding the cases to Magistrate for de novo trial, as
evidence was recorded by one Magistrate and conviction was
recorded by his successor-A case u/s 138 of N.I. Act, which
requires to be tried in a summary way as contemplated uls
143 of the Act, when in fact, was tried as regular summons 0
case it would not come within the purview of s.326 (3) of the
Code and, as such, it need not be heard de novo and the
succeeding Magistrate can follow the procedure contemplated
u/s 326 (1) of the Code- In the cases on hand, without strong,
cogent, unimpeachable evidence on record that cases were E
tried 'summarily' but not as regular trial, High Court gravely
erred in remanding them to trial court for a de novo trial -
Impugned judgments of High Court are set aside and matters
remanded to it for consideration on merits.
Code of Criminal Procedure, 1973: F
1 s.326(3) of the Code, rlw s.143 of NI Act- De novo trial
in cases arising out of s. 138, NI Act - A de novo trial should
be the last resort and that too only when such a course
becomes so desperately indispensable - It should be limited G
to the extreme exigency to avert "a failure of justice" - Any
omission or even illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de
novo trial - The ratio in Nitinbhai must not be followed
1061 H
1062 SUPREME COURT REPORTS [2014] 10 S.C.R.
A mechanically to remand matters to trial courts for de novo trial
- There should be proper application of judicial mind and
evidence on record must be thoroughly perused before
arriving at any conclusion with regard to mode of trial -
Directions issued for courts seized off with similar cases -
B Administration of criminal justice.
Administration of justice
Criminal justice - 'Speedy trial' and 'fair trial' - Explained.
c Allowing the appeals, the Court
HELD: 1.1. Sub-s. (1) of s.143 of the N.I. Act makes it ·
clear that all offences under Chapter XVII of the N.I. Act
shall be tried by the Magistrate 'summarily' applying, as
far as may be, provisions of ss. 262 to 265 of Cr.P.C. Sub-
D s. (2) mandates that so far as practicable, the trial has to
be conducted on a day to day basis until its conclusion.
An analysis ·of s.143 brings out that the Magistrate,
initially, should try the case 'summarily' if he is of the
opinion that he is not going to pass sentence of
E imprisonment not exceeding one year and fine of
Rs.5,0001-. In case during the course of trial, if the
Magistrate forms a different opinion that in the
circumstances of the case, he may order a sentence of a
term exceeding one year, or for any other reason it is
F undesirable to try the case summarily, he must record the
reasons for doing so and go for a 'regular trial'. The
second proviso to sub-s. (1) of s.143, gives discretion to
the Magistrate to conduct the case other than in summary
manner. [para 25-26] (1077-B, E-H]
G
1.2. In Nitinbhai, the case was established as being
decided 'summarily' whereas in the instant cases, no
such independent inquiry has been undertaken by the
High Court to arrive at a just conclusion whether the
H cases were tried "summarily" or in a "regular way". On
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1063
the other hand, the trial indicates all trappings of regular A
trial and, as such, cannot simply be termed as "summary
trial". [para 32-34]
Nitinbhai Saevatilal Shah Vs. Manubhai Manjibhai
Panchal 2011 (10) SCR 804 = AIR 2011 SC 3076 - B
distinguished.
1.3. In the instant cases, Magistrate has not
specifically mentioned that the trial was conducted as
summons case or summary case. Thus, the High Court
has not applied its mind independently by thoroughly C
examining the records about the procedure followed in
these cases by the Magistrate. If the case in substance
was not tried in a summary way, though was triable
summarily, and was tried as a summons case, it need not
be heard de novo and the succeeding Magistrate can D
follow the procedure contemplated u/s 326 (1) of the
Code. [para 35-37] [1086-G; 1087-E-H; 1088-A]
Ramilaben Trikam/al Shah vs. Tube and Allied Products
& Ors. 2007 ALLMR (Cri) 1637 (Born); A. Krishna Reddy vs.
E
State & Anr. 1999 (6) ALO 279; Shivaji Sampat Jagtap Vs.
Rajan Hirata/ Arora & Anr. 2007 CriLJ 122; Tripati Vyas Vs.
State of Rajasthan 2014 (1) Crimes 46 - approved
Bhaskar @ Prabaskar & Ors. Vs. State represented by
Inspector of Police, Vol/or Ta/uk Police Station, Ve/lore (1999) F
8 sec 551 - referred to.
J
1.4. Thus, there is patent illegality in the approach
undertaken by the High Court in remanding the matter for
a de novo trial mechanically on the ground of change of G
Magistrate, without proper appreciation of the material
before it. The impugned judgments passed by the High
Court are set aside and the matters are remanded to the
High Court for consideration on merits. [para 43 and 64]
[1090-H; 1091-A; 1099-C]
H
1064 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Mohd. Hussain @ Ju/fikar Vs. State (Govt. of NCT of
Delhi) 2012 (10) SCR 480 = (2012) 9 SCC 408, State of MP.
Vs. Bhooraji & Ors. 2001(2) Suppl. SCR 128 = (2001) 7 SCC
679 and Ganesha v. Sharanappa & Anr.2013 (12) SCR 400
= (2014) 1 sec 87 - relied on.
B
Bharati Tamang Vs. Union of India and Ors.2014 CriLJ
156; Babubhai Vs. State of Gujarat and Ors. 2010 (10)
SCR 651 = (2010) 12 SCC 254 Mehsana Nagrik Sahkari
Bank Ltd. Vs. Shreeji Cab Co. & Ors. Etc. 2014 CriLJ 1953;
C Satyajit Banerjee Vs. State of W.B. 2004 (6) Suppl.
SCR 294 = (2005) 1 SCC 115; Rajesh Agarwal Vs. State &
Anr. 171(2010) DLT 51- referred to
2.1. 'Speedy trial' and 'fair trial' to a person accused
of a crime are integral part of Art. 21 of the Constitution
D of India. There is, however, qualitative difference between
the right to speedy trial and the accused's right of fair trial.
Unlike the accused's right of fair trial, deprivation of the
right to speedy trial does not per se prejudice the
accused in defending himself. Speedy trial secures rights
E to an accused but it does not preclude the rights of
public justice. The nature and gravity of crime, persons
involved, social impact and societal needs must be
weighed along with the right of the accused to speedy
trial and if the balance tilts in favour of the former the long
F delay in conclusion of criminal trial should not operate
against the continuation of prosecution and if the right
of accused in the facts and circumstances of the case
and exigencies of situation tilts the balance in his favour,
the prosecution may be brought to an end. These
principles must apply as well when the appellate Court
G is confronted with the question whether or not retrial of
an accused should be ordered. [para 49) [1092-G; 1093·
A·D]
Mohd. Hussain@ Julfikar Ali Vs. State of Delhi AIR 2013
H SC 3860; Abdul Rehman Antulay & Ors. Vs. R.S. Nayak &
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1065
Anr. 1991 (3) Suppl. SCR 325 = (1992) 1 SCC 225 A
Hussainara Khatoon & Ors. (I) Vs. Home Secretary, State of
Bihar 1979 (3) SCR 169 = (1980) 1 SCC 81, Hussainara
Khatoon & Ors. (Ill) Vs. Home Secretary, State of Bihar, Patna
(1980) 1 SCC 93, Hussainara Khatoon & Ors. (IV) Vs. Home
Secretary, State of Bihar, Patna 1979 (3) SCR 532 = (1980) B
1 SCC 98 and Raghubir Singh & Ors. Vs. State of Bihar 1986
(3) SCR 802 = (1986) 4 SCC 481 n Mohd. Hussain Vs. State
=
(Govt. of NCT of Delhi), 2012 (10) SCR 480 (2012) 9 SCC
408 - referred to.
· 2.2. A de novo trial should be the last resort and that C
too only when such a course becomes so desperately
indispensable. It should be limited to the extreme
exigency to avert "a failure of justice". Any omission or
even the illegality in the procedure which does not affect
the core of the case is not a ground for ordering a de D
novo trial.The ratio in Nitinbhai must not be followed
mechanically to remand matters to trial courts for de
novo trial. There should be proper application of judicial
mind and evidence on record must be thoroughly
perused before arriving at any conclusion with regard to E
mode of trial. Directions are issued for the courts seized
off with similar cases. [para 58, 60 and 61] [1095-G; 1096-
H; 1097-A, B]
State of M.P. Vs. Bhooraji 2001 (2) Suppl. SCR 128 = F
(2001) 7 sec 679 - relied on.
2.3. It is directed that all the Criminal Courts in the
country dealing with cases falling uls138 of the N.I. Act
should follow the procedure discussed in the instant
judgment for speedy and expeditious disposal of cases G
as per the purport of the Act. [para 62] [1098-F]
Indian Bank Association & Ors. Vs. Union of India & Ors.
(2014) 5 SCC 590; Pratibha Pandurang Salvi & Ors. Vs. State
of Maharashtra & Anr. 2010 Crl.L.J. 730; Kishore Pa/lei Vs. H
1066 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Aruna Kumar Panda 2013 (I) OLR 1005, Mandvi Cooperative
Bank Ltd. Vs. Nimesh B. Thakore 2010 (1) SCR 219 = (2010)
3 sec 83 - cited.
Case Law Reference:
B 2011 (10) SCR 804 distinguished Para 5
2014 CriLJ 1953 referred to para 17
(2014) 5 sec 590 cited para 18
c 2010 Crl.L.J. 730 cited para 20
2013 (I) OLR 1005 cited para 20
2010 (1) SCR 219 cited para 22
2007 ALLMR (Cri) 1637 (Born) approved para 37
D
1999 (6) ALO 279 approved para 38
(1999) 8 sec 551 referred to para 39
2007 CriLJ 122 approved para 40
E 2014 (1) Crimes 46 approved para 42
2014 CriLJ 156 referred to para 45
2010 (10) SCR 651 referred to para 46
F 2012 (10) SCR 480 relied on para 47
2001 (2) Suppl. SCR 128 relied on para 47
2013 (12) SCR 400 relied on para 47
AIR 2013 SC 3860 referred to Para 50
G
1991 (3) Suppl. SCR 325 referred to Para 50
1979 (3) SCR 169 referred to Para 50
(1980) 1 sec 93 referred to Para 50
H 1979 (3) SCR 532 referred to Para 50
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1067
1986 (3) SCR 802 referred to Para 50 A
2012 (10) SCR 480 referred to Para 50
2004 (6) Suppl. SCR294 referred to Para 53
2001 (2) Suppl. SCR 128 relied on para 58
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2221 of 2014.
From the Judgment & Order dated 07 .03.2012 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 462 of c
2006.
WITH
Criminal Appeal Nos. 2222 & 2223 of 2014.
D
$ushil Karanjakar, Aniruddha P. Mayee, Charudatta
Mahindrakar, A. Selvin Raja, Haresh Raichura for the
Appellants.
Kunal Verma, Hemantika Wahi, Preeti Bhardwaj, Puja
Singh, Vimal Chandra S. Dave, Chinmoy Khaladkar, Padhyaru, E
Sayooj Mohandas M., for the Respondents.
The Judgment of the Court was delivered by
N.V. RAMANA, J. 1. Leave granted.
F
2. The undisputed facts of the appeal arising out of S.L.P.
(Crl.) No. 5623 of 2012 are that appellant No. 2 is the owner
of appellant No. 1 Company. The respondent No. 2, who is in
the business of manufacture, process and marketing of
petroleum products, has a 'Company Owned Company G
Operated' retail outlet at Village Gadu, Maliya Hatina Taluq,
District Junagadh, Gujarat. Appellants entered into a contract
with the Respondent No. 2 Corporation for performing various
contractual jobs. As per the terms of the contract, the appellants
were required to undertake the contracted jobs and to deposit H
1068 SUPREME COURT REPORTS [2014] 10 S.C.R.
A the money out of sale proceeds on a daily basis in the State
Bank of India, Veraval Branch. The business dealings between
the parties were going on since 1996 and in terms of the
contract appellants furnished to the Respondent No. 2, two
Cheques bearing Nos. 884572 and 884574, dated 24th June,
8 2000 for Rs.10 lakhs and Rs.25 lakhs, respectively. When the
cheques were presented for realization, they bounced with the
endorsement "not arranged for". Hence, respondent No. 2
initiated criminal proceedings under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'the N.I. Act')
c against the appellants and filed Criminal Complaint No. 2131
of 2000.
3. Before the Trial Court it was argued on behalf of
Respondent No.2-Corporation that the cheques in question
were issued by the appellants to discharge their part liability
D for clearing the dues whereas the case of the appellants was
that there were no dues payable to the Respondent Corporation
and the Cheques were taken by the complainant-Corporation
as 'guarantee' and misused the same.
E 4. The Trial Court acquitted the appellant No. 2-accused
under Section 255(1) of the Criminal Procedure Code (Cr.P.C.)
holding that considering the facts and circumstances and taking
into account the evidence and the settled principles of law,
complainant has failed to prove the charge against the accused
F and under the circumstances, it is not possible to hold the
accused guilty for the offence punishable under Section 138 of
the Act.
5. Aggrieved by the judgment of the learned Trial Judge,
the respondent No. 2-complainant challenged it in an appeal
G before the High Court of Gujarat under Section 378, Cr.P.C. It
was contended before the High Court on behalf of the
complainant-Corporation that the evidence was recorded by
one Magistrate and relying on the same evidence, his successor
Magistrate delivered the judgment. Therefore, the trial was
H vitiated as the case was tried 'summarily' under Section 143
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1069
[N.V. RAMANA, J.]
of the N.I. Act, and the successor Magistrate could not have A
relied upon the evidence recorded by his predecessor. Placing
reliance on this Court's decision in Nitinbhai Saevatila/ Shah
Vs. Manubhai Manjibhai Panchal AIR 2011 SC 3076, the
complainant submitted that the matter be remanded to the Trial
Court for a de novo trial, B
6. The High Court observed that the learned Magistrate
who delivered the judgment was not in a position to appreciate
the evidence properly and decide the matter effectively to do
substantial justice as he formed the opinion relying upon the C
evidence recorded by his predecessor. It, therefore, caused
serious prejudice to the complainant as an order of acquittal
was passed. Hence, the High Court allowed the appeal and
remanded the matter to the Trial Court for a fresh trial in
accordance with law after giving opportunity to the parties.
D
7. Dissatisfied with the High Court's judgment, the
accused-appellants assailed it in appeal before this Court. On
6th August, 2012, this Court while issuing notice, stayed
proceedings going on before the learned Magistrate in
pursuance of the remand order passed by the High Court. E
8. The brief facts of S.L.P. (Crl.) No. 3332 of 2012 are that
at the relevant time, the complainant-Jayesh Thakker was the
Manager of Respondent No.1 firm (D.M. Finance). Appellant
Nos. 2 to 5 were Directors of the Appellant No. 1 Company
F
which runs the business of proteins. They entered into a
transaction with the Respondent No. 1 firm for purchase of
castor stocks. It is alleged that the Appellant Nos. 2 to 5 had
purchased the stock of castor seeds and as per the statement
of account, the appellants paid only Rs.28,66,677/- and an
amount of Rs.41,89,364/- was outstanding. The appellants, G
therefore, issued three cheques bearing No.585977 dated
27.6.2001 for Rs.3,00,000/, cheque No. 585979 for
Rs.2,00,000/- and cheque No. 585980 for Rs.2,00,000/- drawn
on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards part
H
1070 SUPREME COURT REPORTS [2014] 10 S.C.R.
A payment. When these cheques were presented for realization,
they were dishonoured by the Bank with endorsement
"insufficient funds". Respondent No. 1 issued notice dated
10.7.2001 to the appellants and upon their failure to obey the
notice, he filed a Complaint under Section 138 of the N.I. Act.
B
9. Before the Trial Court, the appellants denied having
committed the offence and the complainant has adduced
evidence. By an order dated 30.5.2009 the Trial Court
acquitted the accused-appellants. The Respondent No. 1-
C complainant challenged the acquittal order in an appeal before
the High Court of Gujarat under Section 378, Cr.P.C.
10. It was mainly contended by the complainant before the
High Court that the Trial Court committed illegality as the
offence under Section 138 of NI Act has to be tried in summary
D manner and a part of evidence was recorded by one
Magistrate and remaining part of evidence was recorded by a
successor Magistrate who delivered the judgment. The High
Court, placing reliance on Nitinbhai remanded the matter to the
Trial Court for a de novo trial. Aggrieved by the remand order
E passed by the High Court, the accused-appellants preferred
the present appeal.
11. This Court, by an order dated 27th August, 2012
issued notice and stayed proceedings before the learned
Magistrate in pursuance of the remand order passed by the
F High Court. This Court also directed to tag on this matter with
SLP (Crl) No. 5623 of 2012.
12. As regards the appeal arising out of S.L.P. (Crl.) No.
734 of 2013, the facts in a nutshell are that the Respondent
G No.1-complainant was the owner of Ranjan High School in
Bapunagar, Ahmedabad and the accused-appellant was
engaged with the activities of the school. The accused-
appellant took hand loan of Rs.3,57,000/- from the respondent
No. 1. To fulfil his obligation, the appellant issued a cheque No.
H 481551 dated 25.8.1998 for Rs.2,97,000/- and another cheque
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1071
[N.V. RAMANA, J.]
No. 481552 dated 25.10.1998 for Rs. 60,000/- drawn on A
Gandhinagar Nagrik Co-operative Bank, Sachivalaya Branch,
Gandhinagar. Upon presentation, the cheques were returned
by the bank unpaid on account of insufficient funds. A notice
was served upon the accused-appellant on 17.11.1998
demanding payment and upon his failure to comply with the B
notice, the respondent No.1-complainant filed criminal
complaint.before the Trial Court.
13. Accused pleaded not guilty and after conducting the
trial. The Trial Court by an order dated 7.8.2009 acquitted the
appellant-accused holding him innocent as per Section 255(1) C
of the Cr.P.C. Aggrieved thereby, the respondent No. 1
preferred appeal under Section 378 of Cr.P.C. before the High
Court. The High Court, by the impugned judgment, observed
that the case was transferred from one Metropolitan Magistrate
to another and the Magistrate who recorded the evidence did D
not pass judgment. Placing reliance on Nitinbhai the High Court
allowed the appeal and remanded the matter to the Trial Court
for de novo trial. Against the order passed by the High Court
remanding the matter for de novo trial, the accused-appellant
preferred the present appeal. E
14. This Court, by an order dated 14th January, 2013
issued notice and stayed proceedings before the learned
Magistrate in pursuance of the remand order passed by the
High Court. The matter was also directed to be tagged with SLP F
(Crl) No. 5&23 of 2012.
15. That is how all these appeals are placed before us. In
all three matters, the rival contentions of the parties are more
or less similar and as the issue.involved is one and the same,
they are being dealt with and disposed of commonly. G
16. Learned counsel for the appellants contended that even
though the learned Magistrate who rendered the judgment was
not the same who recorded the evidence, the fact remains that
the order of acquittal was recorded only after appreciating the H
1072 SUPREME COURT REPORTS (2014] 10 S.C.R.
A entire evidence in its proper perspective and after giving an
opportunity to both sides to present their case. Not only that,
the learned Magistrate, before delivering the judgment, has
given ample opportunity to the parties to bring on record their
evidence in detail. The learned Magistrate analyzed the entire
B oral as well as documentary evidence. After taking into account
all material aspects, the Trial Court framed the issues and
passed reasoned order arriving at a conclusion that no iota of
evidence is produced by the complainant to show that any
amount was due and recoverable from the accused and the
c complainant has failed to prove that the Cheques in question
were issued by the accused towards a legally enforceable debt.
While passing the order of acquittal, the Trial Court also
considered the settled principles of law laid down by this Court
and came to the conclusion that the accused is not guilty of the
offence under Section 138 of the N.I. Act. Therefore, in view of
0
the exercise undertaken by the learned Judge, the trial in
question could not be termed as a 'summary trial' and there is
no impropriety involved in the judgment of the Trial Court. The
High Court, while allowing the appeal of the complainant by
setting aside the order of acquittal and directing for a de novo
E trial, failed to take into consideration the prejudice caused to
the accused and further failed to follow the principles of natural
justice.
17. Learned counsel, drawing our attention to the nature
F of 'summary trial', submitted that in the present case (SLP(Crl)
No. 5623 of 2012), recording of the evidence of PW 1 was
commenced on 19th December, 2002 and Sections 143 to
147 of the N.I. Act came to be inserted by the Negotiable
Instruments (amendment and Miscellaneous Provisions) Act,
G 2002 only w.e.f. 6th February, 2003, empowering the Court to
try all offences under Chapter XVII of the N.I. Act 'summarily'.
Thus, the change of law after the commencement of recording
evidence cannot be applied to the present case and the
judgment of the trial Court cannot be treated as a result of
H 'summary trial'. Moreover, the exercise undertaken by the
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1073
[N.V. RAMANA, J.)
learned Magistrate during the course of trial by examining the A
witnesses, marking of documents, recording of entire evidence
in detail, cross examination and chief examination etc., shows
that he tried the case not 'summarily' but in a regular way. For
the simple reason that the learned Magistrate has failed to
mention that the case was tried in a regular way but not B
'summarily', the trial would not get vitiated. The final verdict of
the Trial Court that "considering all facts and circumstances,
and considering the evidence and the settled principles of
law and evidence. complainant has failed to prove the
charge against the accused and under all these c
circumstances, it is not possible to hold the accused guilty
and convict him" explains in clear terms that the decision was
passed after undergoing a regular trial following complete
procedure in accordance with the Cr.P.C. Keeping in mind the
provisions of Section 465, Cr.P.C., the High Court ought not 0
to have reversed the finding of the Trial Court on account of any
error, omission or irregularity in the complaint or order, judgment
or other proceedings during trial or inquiry until and unless the
Court feels that failure of justice has in fact occasioned thereby.
Learned counsel, taking cue from sub-section (2) of Section E
465, Cr.P.C., submitted that it is the bounden duty of
respondents-complainants to raise the objection, if any, at the
earliest stage before the Trial Court itself. But the complainants
had not raised any such objection that being summary
proceedings, the learned Magistrate who delivered the
judgment cannot act on the evidence recorded by his F
predecessor. The respondents have therefore no locus to raise
such objection in appeal, and the High Court had committed a
serious error in entertaining the plea of respondents and setting
aside the judgment of the Trial Court. In support thereof, learned
counsel heavily relied on a decision of this Court dated 12th G
July, 2013 in Criminal Appeal Nos. 968-971 of 2013 (Mehsana
Nagrik Sahkari Bank Ltd. Vs. Shreeji Cab Co. & Ors. Etc.
2014 CriLJ 1953) wherein this Court after referring to Nitinbhai
and perusing the notes of evidence, found that the Magistrate
H
1074 SUPREME COURT REPORTS [2014] 10 S.C.R.
A recorded the evidence not in a summary manner but in full
fledged manner and declared that there is no need to order for
a de novo trial.
18. While submitting that by remanding the present matter
to the Trial Court for a de novo trial, nothing new can be found,
8
learned counsel invited our attention to a judgment of this Court
in Indian Bank Association & Ors. Vs. Union of India & Ors.
(2014) 5 SCC 590 whereby this Court has issued certain
directions to the Trial Courts as to how to deal with the
complaints under Section 138 of the N.I. Act. In the said
C judgment, Guideline No. 5 speaks in the following terms:
(5) The Court concerned must ensure that examination-
in-chief, cross-examination and re-examination of
the complainant must be conducted within three
D months of assigning the case. The court has option
of accepting affidavits of the witnesses instead of
examining them in the court. The witnesses to the
complaint and the accused must be available for
cross-examination as and when there is direction
E to this effect by the court.
19. This Court further directed that all the criminal Courts
in the country dealing with Section 138 of the N.I. Act cases to
follow the abovementioned procedure for speedy and
F expeditious disposal of those cases. In the trial of the present
cases also, though it was not a summary trial, learned
Magistrate has kept in mind the above mentioned procedure
and scrupulously followed the same.
20. Learned counsel further submitted that Section 260,
G Cr.P.C. provides an option to the Magistrate either to try the
case summarily or as a summons case. Relying on a decision
of Bombay High Court in Pratibha Pandurang Salvi & Ors. Vs.
State of Maharashtra & Anr. 2010 Crl.L.J. 730, and also a
decision of Orissa High Court in Kishore Pallei Vs. Aruna
H Kumar Panda 2013 (I) OLR 1005, learned counsel argued that,
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1075
[N.V. RAMANA, J.]
Section 143 of the N.I. Act provides an option to the Magistrate A
to try a case 'summarily' or otherwise. Therefore, there is no
illegality in the way trial of the present cases was conducted
and the High Court was not right in ordering for a de novo trial.
21. Learned counsel for the respondents, on the other
hand, contended that even though sub-section (1) of Section B
326 Cr.P.C. allows the succeeding Magistrate to act on the
evidence so recorded by his predecessor, sub-section (3)
thereof puts a bar in respect of summary trials in proceedings
under Section 138 of the N.I. Act. After the insertion of Section
143 to the N.I. Act, w.e.f. 6th February, 2003, all offences under C
Chapter XVII of the N.I. Act shall be tried by the Judicial
Magistrate and provisions of Sections 262 to 265 of the Cr.P.C.
shall, as far as may be, apply. Basing reliance on Nitinbhai
learned counsel for the respondents submitted that the
prohibition contained in sub-section (3) of Section 326 is D
absolute and admits of no exception. Sub-section (2) of Section
143 of the N.I. Act read with absolute bar contained in sub-
section (3) of Section 326, Cr.P.C. makes it clear that in
summary trial the evidence if recorded by a Magistrate partly,
the entire trial vitiates and becomes non est in the law. In such E
cases, de novo trial is only the alternative.
22. Placing reliance on Mandvi Cooperative Bank Ltd. Vs.
Nimesh B. Thakore (2010) 3 SCC 83, learned counsel
submitted that in cases of summary trials, Sections 143, 144,
F
145 and 147 of the N.I. Act form a compete code which
expressly departs and overrides the provisions of Cr.P.C. They
provide flexibility to the Magistrate to come to a conclusion that
at any stage of the trial, if the Magistrate thinks that it would
not be desirable to hold a summary trial, he may call for cross
examination, chief examination and recall any witness. For G
doing so, however, the Magistrate has to record reasons. But,
in the cases on hand no such reason has been recorded by
the Magistrate and hence the trial could only be treated as
'summary trial' and there is no illegality in the decision of the
H
1076 SUPREME COURT REPORTS [2014] 10 S.C.R.
A High Court remanding the matter for de novo trial. Learned
counsel further submitted that the amendment inserting
Sections 143 to 147 in the N.I. Act w.e.f. 6th February, 2013
shall be held to be retrospective in operation.
23. Having heard learned counsel for the parties at length,
8 the following issues arise for our determination:
1. What is the legislative intent of the Negotiable
Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 and the object of
c incorporating Section 143?
2. What are the factors, the appellate Court has to
keep in mind while arriving at a conclusion about
the procedure adopted by the Trial Court in
conducting the trial?
D
3. In what circumstances a case should be remanded
back for de novo trial?
24. The Legislature, having noticed that the prevailing
E Sections 138 to 142 of the N.I. Act could not completely achieve
the desired results, has chosen to insert Sections 143 to 147
with an avowed object of speedy disposal of cases relating to
dishonour of cheques. To achieve the purpose of "speedy
disposal", the Legislature has recommended a simplified
F procedure for trial of the offences under the N. I. Act i.e.
'summary trial'. The amendment to the Act also made the
offence 'compoundable' as the punishment provided in the
unamended Act was inadequate and the procedure was found
to be cumbersome. Thus, incorporation of Sections 143 to 147
G was ~specially aimed at early disposal of cases in a simplified
procedure and more particularly, to do away with all the stages
and processes in a regular criminal trial that normally cause
inordinate delay in its conclusion and to make the trial
procedure as expeditious as possible without in any way
compromising with the right of the accused for a fair trial. This
H
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1077
[N.V. RAMANA, J.]
results in overcoming the huge docket of Courts with matters A
pertaining to dishonour of cheques as their prolonged trials
became a serious matter of concern.
25. Sub-section (1) of Section 143 of the N.I. Act makes
it clear that all offences under Chapter XVII of the N.I. Act shall 8
be tried by the Magistrate 'summarily' applying, as far as may
be, provisrons of Sections 262 to 265 of Cr.P.C. It further
provides that in case of conviction in a summary trial, the
Magistrate may pass a sentence of imprisonment for a term
not exceeding one year and a fine exceeding Rs.5,000/-. Sub-
section (1) of Section 143 of the N.I. Act further provides that C
during the course of a summary trial, if the Magistrate is of the
opinion that the nature of the case requires a sentence for a
term exceeding one year or for any other reason, it is
undesirable to try the case summarily, the Magistrate shall, after
hearing the parties, record an order to that effect and thereafter D
recall any witness whom he had examined, or proceed to rehear
the case. Sub-section (2) mandates that so far as
practicable. the trial has to be conducted on a day to dav
basis until its conclusion.
E
26. An analysis of Section 143 brings out that the
Magistrate, initially, should try the case 'summarily' if he is of
the opinion that he is not going to pass sentence of
imprisonment not exceeding one year and fine of Rs.5,000/- .
In case during the course of trial, if the Magistrate forms a F
different opinion that in the circumstances of the case, he may
order a sentence of a term exceeding one year, or for any other
reason it is undesirable to try the case summarily, he must
record the reasons for doing so and go for a 'regular trial'.
Thereafter, the Magistrate can also recall any witness who has G
been examined and proceed to hear or rehear the case. So,
the second proviso to sub-section (1) of Section 143, gives
discretion to the Magistrate to conduct the case other than
in summary manner.
H
1078 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 27. This Court in Mandvi Cooperative Bank (supra) after
analyzing the objects and importance of Sections 143 to 147
of the N.I. Act, this Court observed that Section 143 of the Act
gave power to the Court to try cases summarily. At Paras 20,
21, 25 & 29 of the said judgment, this Court observed:
B
"20. It may be noted that the provisions of Sections 143,
144, 145 and 147 expressly depart from and override the
provisions of the Code of Criminal Procedure, the main
body of adjective law for criminal trials. The provisions of
Section 146 similarly depart from the principles of the
c Evidence Act. Section 143 makes it possible for the
complaints under Section 138 of the Act to be tried in the
summary manner, except, of course, for the relatively small
number of cases where the Magistrate feels that the nature
of the case is such that a sentence of imprisonment for a
D term exceeding one year may have to be passed or that
it is, for any other reason, undesirable to. try the case
summarily.
21. It is, however, significant that the procedure of
E summary trials is adopted under Section 143 subject to
the qualification "as far as possible", thus, leaving sufficient
flexibility so as not to affect the quick flow of the trial
process. Even while following the procedure of summary
trials, the non obstante clause and the expression "as far
F as possible" used in Section 143 coupled with the non
obstante clause in Section 145 allow for the evidence of
the complainant to be given on affidavit, that is, in the
absence of the accused. This would have been
impermissible (even in a summary trial under the Code of
Criminal Procedure) in view of Sections 251 and 254 and
G
especially Section 273 of the Code. The accused,
however, is fully protected, as under sub-section (2) of
Section 145 he has the absolute and unqualified right to
have the complainant and any or all of his witnesses
summoned for cross-examination.
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1079
[N.V. RAMANA, J.]
A
25. It is not difficult to see that Sections 143 to 147 lay
down a kind of a special code for the trial of offences under
Chapter XVII of the Negotiable Instruments Act and
Sections 143 to 147 were inserted in the Act by the
8
Negotiable Instruments (Amendment and Miscellaneous
Provisions) Act, 2002 to do awav with all the stages
and processes in a regular criminal trial that normallv
cause inordinate de/av in its conclusion and to make
the trial procedure as expeditious as possible without C
in anv way compromising on the right of the accused
for a fair trial. Here we must take notice of the fact that
cases under Section 138 of the Act have been coming in
such great multitude that even the introduction of such
radical measures to make the trial procedure simplified
and speedy has been of little help and cases of D
dishonoured cheques continue to pile up giving rise to an
unbearable burden on the criminal court system.
29. Once it is realised that Sections 143 to 147 were E
designed especially to lay down a much simplified
procedure for the trial of dishonoured cheque cases
with the sole object that the trial of those cases
should follow a course even swifter than a summarv
trial and once it is seen that even the special F
procedure failed to effectively and expeditiously
handle the vast multitude of cases coming to the
court. the claim of the accused that on being
summoned under Section 145(2). the complainant or
any of his witnesses whose evidence is given on G
affidavit must be made to depose in examination-in-
chief all over again plainly appears to be a demand for
meaningless duplication. apparently aimed at delaying
the trial."
H
1080 SUPREME COURT REPORTS [2014) 10 S.C.R.
A 28. We find that in the case of Nithinbhai, the complainant
examined himself along with other witnesses in support of his
case and produced documentary evidence. The accused,
however, did not lead any defence evidence but in his
examination under Section 313 Cr.P.C., the accused stated
s that his signature was obtained on the blank paper by
kidnapping him, written something on it and filed a false
complaint against him. After recording evidence, the
Metropolitan Magistrate came to be transferred. Therefore, he
ceased to exercise jurisdiction. He was succeeded by another
C Magistrate before whom both parties, i.e. the complainant as
well as the accused, filed a memo declaring that the parties
had no objection to proceed with the matter on the basis of
evidence recorded by the predecessor Magistrate in terms of
Section 326, Cr.P.C. and on that basis, learned Magistrate
considered the evidence led by the complainant and passed
0
judgment convicting the appellants under Section 138 of the N.I.
Act and sentenced them to suffer simple imprisonment for
three months with fine of Rs.3,000/-. Aggrieved by the said
order, the accused preferred Criminal Appeal before the
Sessions Judge at Ahmedabad who affirmed the conviction.
E However, there was some modification in the sentence.
Dissatisfied with the judgment of the first appellate Court, the
accused moved Gujarat High Court by way of a Revision. The
Gujarat High Court maintained the conviction under Section 138
of the N.I. Act, but set aside the final order of sentence imposed
F upon the accused and remanded the matter to the learned
Magistrate for passing appropriate -order on sentence and
compensation. Aggrieved by the said order, appeal came
before this Court.
G 29. Dealing with the said appeal, this Court, while relying
on the provisions of Section 326, Cr.P.C. observed:
"12. Section 326 is part of the general provisions as to
inquiries and trials contained in Chapter XXIV of the Code.
It is one of the important principles of criminal law that the
H
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1081
[N.V. RAMANA, J.]
Judge who hears and records the entire evidence must A
give judgment. Section 326 is an exception to the rule that
only a person who has heard the evidence in the case is
competent to decide whether the accused is innocent or
guilty. The section is intended to meet the case of transfers
of Magistrates from one place to another and to prevent B
the necessity of trying from the beginning all cases which
may be part-heard at the time of such transfer. Section
326 empowers the succeeding Magistrate to pass
sentence or to proceed with the case from the stage it was
stopped by his preceding Magistrate. Under Section c
326(1 ), the successor Magistrate can act on the evidence
recorded by his predecessor either in whole or in part. If
he is of the opinion that any further examination is required,
he may recall that witness and examine him, but there is
no need of a retrial.
D
13. In fact, Section 326 deals with part-heard cases, when
one Magistrate who has partly heard the case is
succeeded by another Magistrate either because the first
Magistrate is transferred and is succeeded by another, or
because the case is transferred from one Magistrate to E
another Magistrate. The rule mentioned in Section 326 is
that the second Magistrate need not rehear the whole case
and he can start from the stage the first Magistrate left it.
14. However, a bare perusal of sub-section (3) of Section F
326 makes it more than evident that sub-section (1) which
authorises the Magistrate who succeeds the Magistrate
who had recorded the whole or any part of the evidence
in a trial to act on the evidence so recorded by his
predecessor, does not apply to summary trials. The G
prohibition contained in sub-section (3) of Section 326 of
the Code is absolute and admits of no exception. Where
a Magistrate is transferred from one station to another, his
jurisdiction ceases in the former station when the transfer
takes effect.
H
1082 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 15. Provision for summary trials is made in Chapter XXI
of the Code. Section 260 of the Code confers power upon
any Chief Judicial Magistrate or any Metropolitan
Magistrate or any Magistrate of the First Class specially
empowered in this behalf by the High Court·to try in a
B summary way all or any of the offences enumerated therein.
Section 262 lays down the procedure for summary trial and
sub-section (1) thereof inter alia prescribes that in summary
trials the procedure specified in the Code for the trial of
summons case shall be followed subject to the condition
c that no sentence of imprisonment for a term exceeding
three months is passed in case of any conviction under the
chapter.
16. The manner in which the record in summary trials
is to be maintained is provided in Section 263 of the
D Code. Section 264 mentions that:
"264. Judgments in cases tried summarily.-ln
every case tried summarily in which the accused
does not plead guilty, the Magistrate shall record
E the substance of the evidence and a judgment
containing a brief statement of the reasons for the
finding."
Thus, the Magistrate is not expected to record full
evidence which he would have been. otherwise
F
required to record in a regular trial and his judgment
should also contain a brief statement of the reasons
for the finding and not elaborate reasons which
otherwise he would have been required to record in
regular trials.
G
17. The mandatory language in which Section 326(3) is
couched, leaves no manner of doubt that when a case is
tried as a summary case a Magistrate, who succeeds the
Magistrate who had recorded the part or whole of the
H evidence, cannot act on the evidence so recorded by his
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1083
[N.V. RAMANA, J.]
predecessor. In summary proceedings, the successor A
Judge or Magistrate has no authority to proceed with the
trial from a stage at which his predecessor has left it. The
reason why the provisions of sub-sections (1) and (2) of
Section 326 of the Code have not been made applicable
to summary trials is that in summary frials only the B
substance of evidence has to be recorded. The court does
not record the entire statement of witnesses. Therefore, the
Judge or the Magistrate who has recorded such substance
of evidence is in a position to appreciate the evidence led
before him and the successor Judge or Magistrate cannot c
appreciate the evidence only on the basis of evidence
recorded by his predecessor. Section 326(3) of the Code
does not permit the Magistrate to act upon the substance
of the evidence recorded by his predecessor, the
obvious reason being that if the succeeding Judge is
0
permitted to rely upon the substance of the evidence
recorded by his predecessor. there will be a serious
prejudice to the accused and indeed, it would be
difficult for a succeeding Magistrate himself to decide
the matter effectively and to do substantial justice.•
E
30. Further considering the memo jointly filed by the
parties, it was held by this Court that "it is well settled that
no amount of consent by the parties can confer
jurisdiction where there exists none, on a court of law nor
can they divest a court of jurisdiction ·which it possesses F
under the law."
This Court further held:
"19. The cardinal principle of law in criminal trial is that it
is a right of an accused that his case should be decided G
by a Judge who has heard the whole of it. It is so stated
by this Court in the decision in Pyare Lal v. State of
Punjab, AIR 1962 SC 690. This principle was being
rigorously applied prior to the introduction of Section 350
H
1084 SUPREME COURT REPORTS [2014] 10 S.C.R.
A in the Code of Criminal Procedure, 1898. Section 326 of
the new Code deals with what was intended to be dealt
with by Section 350 of the old Code.
20. From the language of Section 326(3) of the Code, it
is plain that the provisions of Sections 326(1) and 326(2)
8
of the new Code are not applicable to summary trials.
Therefore, except in regard to those cases which fall within
the ambit of Section 326 of the Code, the Magistrate
cannot proceed with the trial placing reliance on the
evidence recorded by his predecessor. He has got to try
c the case de novo. In this view of the matter, the High Court
should have ordered de novo trial.
D 22. As it has been seen that Section 326 of the new Code
is an exception to the cardinal principle of trial of criminal
cases, it is crystal clear that if that principle is violated by
a particular Judge or a Magistrate, he would be doing
something not being empowered by law in that behalf.
Therefore, Section 461 of the new Code would be
E
applicable.
23. Section 461 of the new Code narrates the irregularities
which vitiate proceedings. The relevant provision is clause
(/). It reads as follows:
F
"461. Irregularities which vitiate proceedings.-lf any
Magistrate, not being empowered by law in this behalf,
does any of the following things, namely:
* * *
G
(/) tries an offender;
* * *
his proceedings shall be void."
H
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1085
[N.V. RAMANA, J.]
A plain reading of this provision shows that the A
proceedings held by a Magistrate, to the extent that he is
not empowered by law, would be void and void
proceedings cannot be validated under Section 465 of the
Code. This defect is not a mere irregularity and the
conviction of the appellants cannot, even if sustainable on B
the evidence, be upheld under Section 465 of the Code.
25. This is not a case of irregularity but want of
competency. Apart from Sections 326(1) and 326(2) which C
are not applicable to the present case in view of Section
326(3), the Code does not conceive of such a trial.
Therefore, Section 465 of the Code has no application. It
cannot be called in aid to make what was incompetent,
competent. There has been no proper trial of the case and D
there should be one."
31. In Nitinbhai we find that the entire case was tried
'summarily' and the Magistrate who issued process, was
transferred after recording the evidence. The succeeding E
Magistrate delivered the judgment basing upon the memo filed
by the parties declaring that they had no objection to proceed
with the matter on the basis of evidence recorded by his
predecessor. Ultimately, this Court remanded the matter to the
Trial Court for de novo trial opining that no amount of consent
F
by the parties can confer jurisdiction on a Court of law, where
there exists none, nor can they divest a Court of jurisdiction
which it possesses under the law.
32. Coming to the facts of the present cases, on scrutiny
of record available in SLP(Crl) No. 5623 of 2012, we found that G
there has been in total 82 hearings spread over five years. Out
of 82 hearings, 67 hearings were done by Jt. C.J. (J.D.) and
J.M.F.C., Veraval. The Magistrate was transferred on
24.02.2005 and was replaced by J.M.F.C., Veraval who heard
the case for 14 more times and delivered judgment on 15th H
1086 SUPREME COURT REPORTS [2014) 10 S.C.R.
A hearing i.e. on 12.09.2005. Thus by any stretch of imagination,
the trial which extended over five years and was decided in over
82 hearings with elaborate cross examination, deposition and
all trappings of regular trial cannot simply be termed as ··
"summary trial".
B
33. On perusal of record of other two cases (SLP (Crl.)
Nos. 3332 of 2012 and 734 of 2013), we found the similar
situation. The Complaint was taken up on 20th August, 2001
and the Trial Court decided the criminal case on 30th May, 2009
C declaring the accused appellants as innocent, after conducting
about 132 hearings. It is also evident from the record that in
SLP(Crl) No. 734 of 2013, the criminal proceedings under the
N.I. Act were initiated in December, 1"998 before the Trial Court
which came to be concluded by the judgment of the
Metropolitan Magistrate on 7th August, 2009. Thus, during the
D period of about 11 years a total of 103 hearings took place and
a detailed trial procedure had been followed. Going thereby,
prima facie, it is difficult for us to accept that the case was tried
summarily.
E 34. Moreover, these cases were decided by the same
judge in the High Court and there seems to be a mechanical
application of Nitinbhai without discerning the difference on
facts of Nithinbhai and the present cases. In Nitinbhai, the case
was established as being decided 'summarily' whereas in the
F present cases, no such independent inquiry has been
undertaken by the High Court to arrive at a just conclusion
whether the cases were tried "summarily" or in a "regular way".
35. Be that as it may, to satisfy ourselves we have carefully
gone through the records of the Trial Court as well as the
G High Court in each matter before us. There is no doubt,
as per the record, learned Magistrate has not specifically
mentioned that the trial was conducted as summons case
or summary case. Though in the record of SLP(Crl) No.
734 of 2013, at some places the word 'summary' was
H
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1087
. [N.V. RAMANA, J.]
mentioned as regards to the nature of proceedings of the ,A
case, having given our anxious and thorough
consideration, we found that the word 'summary' used
therein was with reference to Chapter XX.II of Cr.P.C,,
1882 and it does not relate to the 'summary trial' envisaged· .Ji,'.
under Section 143, of the N.I. Act. Pertinently, before the B
Trial Court the Suit No. 4457 of 2001 has been referred
at some places as 'Summary Suit' and at some other
places it has been referred as 'Civil Suit'. Similarly, the
case number 5294 of 1998 has been shown at some
places as Summary Case and at some other places it was c
shown as Criminal Case. After a careful examination of the
record, we came to the conclusion that the word 'summary'
used at some places was with reference to summary trials
prescribed under Cr.P .C. Needless to say that the
summary trial as preferred mode of trial in the matters
0
related to negotiable instruments was inserted by the
Amendment Act, 2002 only w.e.f. 6th February, 2003.
36. Thus the scrutiny of the record of the Courts below led
us to the opinion that the High Court has not applied its mind
independently by thoroughly examining the records about the E
procedure followed in these cases by the Magistrate. The
record shows that the Complaint was lodged on 19th August,
2000 and presented in the Court of learned Magistrate on 6th
September, 2000 when the trial proceedings were commenced
which came to be concluded only on 29th August, 2005, after F
a long lapse of about six years.
37. A case under section 138 of the N.I. Act, which
requires to be tried in a summary way as contemplated under
section 143 of the Act, when in fact, was tried as regular G
summons case it would not come within the purview of section
326 (3) of the Code. In other words, if the case in substance
was not tried in a summary way, though was triable summarily,
and was tried as a summons case, it need not be heard de
novo and the succeeding Magistrate can follow the procedure
H
1088 SUPREME COURT REPORTS [2014] 10 S.C.R.
A contemplated under section 326 (1) of the Code [See
Rami/aben Trikamlal Shah vs. Tube and Allied Products &
Ors. 2007 ALLMR (Cri) 1637 (Born)].
38. But where even in a case that can be tried summarily,
B the Court records the evidence elaborately and in verbatim and
defence was given full scope to cross-examine, such procedure
adopted is indicative that it was not summary procedure and
therefore, succeeding Magistrate can rely upon the evidence
on record and de novo enquiry need not be conducted [See
C A. Krishna Reddy vs. State & Anr. 1999 (6) ALO 279].
39. In Bhaskar@ Prabaskar & Ors. Vs. State represented
by Inspector of Police, Vol/or Taluk Police Station, Ve/lore
(1999) 8 SCC 551, this Court observed:
D "15. The archaic concept was that the very same judicial
personage who heard and recorded the evidence must
decide the case. That concept was in vogue for a long time.
But over the years it was revealed in practice that
fossilisation of the said concept, instead of fostering the
administration of criminal justice, was doing the reverse.
E
Very occasionally judicial officer of one court was changed
and was replaced by another. As evidence had to be
recorded afresh by the new officer under the old system,
witnesses who were already examined in the cases at the
cost of considerable strain and expenses - not only to them
F but to the exchequer - were re-summoned and re-
examined. The litigation cost thereby inflicted on the
parties used to soar up. The process would have to be
repeated over again if such next judicial personage also
was changed. Eventually it was learnt that the object sought
G to be achieved by such repetitions, when compared with
the enormous cost and trouble, was not of much utility.
Hence the legislature wanted to discontinue the aforesaid
ante-diluvian practice and decided to afford option to the
successor judicial officer. Legislature conferred such
H option only to the magistrates at the first instance and .at
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1089
[N.V. RAMANA, J.]
the same lime empowered them to re-examine the A
witnesses already examined if they considered such a
course necessary for the interest of justice. As the new
experiment showed positive results towards fostering the
cause of criminal justice the Law Commission
recommended that such option should advisedly be 8
extended to judges of all other trial courts also.
21. A contrary interpretation would lead to unwholesome
repetition of the entire exercise involving considerable cost C
to the exchequer, financial strain to the accused and waste
of time of the courts. Greater than all those, it would inflict
untold inconveniences to the witnesses who are the
innocent parties in (sic) case. The Court cannot afford to
be oblivious to the reality that no witness is, on his own D
volition, desirous of going to the Court for remaining there
until his turn is called to mount the witness stand and to
undergo the agony of facing grueling questions. He does
it as he has no other option when summoned by the Court.
Most of the witnesses can attend the courts only by bearing E
with all the inconveniences to themselves and at the cost
of loss of their valuable time. When any witness had
already undergone such agony once in connection with the
same case, no effort to save him from undergoing that
agony once again for the very same case should be F
spared, unless such re-summoning is absolutely
necessary to meet the ends of justice."
40. In Shivaji Sampat Jagtap Vs. Rajan Hirata/ Arora &
Anr. 2007 CriLJ 122, the Bombay High Court observed thus:
G
"A case, which is triable as summarily, and in which the
record of the proceedings has been prepared in
accordance with the provisions of Section 263 and 264 of
the Code could be stated to have been tried summarily for
the purpose of Section 326(3) and in that case the H
1090 SUPREME COURT REPORTS [2014] 10 S.C.R.
A evidence recorded by one Magistrate cannot be read in
evidence by succeeding Magistrate. The succeeding
Magistrate, however, in a case, where the procedure
contemplated under Sections 263 and 264 of the
Code in particular has not been followed, he need not
8 hold a trial de novo. In short, if no record as per
Sections 263 and 264 has been or is being maintained by
the Magistrate and the case has been or is being tried as
a regular summons case and not tried in a summary way
as contemplated under Sections 262 to 265 of the Code,
c . such case shall not be considered as tried in summary
way, though triable summarily as provided for under Sub-
section ( 1) of Section 143 of the Act, so as to attract the
provisions of Section 326(3) of the Code. Therefore, the
evidence recorded by one Magistrate in such a case
may be legally read in evidence by his successor and
D
no de novo trial shall be necessary".
41. Placing reliance on the aforementioned decision of the
Bombay High Court, in Shyam Prakash Agarwal Vs. Ramesh
Kumar Gupta & Anr. decided on 1st July, 2013, the Rajasthan
E High Court refrained itself from remitting the matter for a de
nova trial and directed to decide the matter on merits by lower
appellate Court.
42. In yet another decision of Rajasthan High Court in
F Tripati Vyas Vs. State of Rajasthan 2014 (1) Crimes 46, the
High Court held that wherein the accused cross examined the
complainant extensively and it was recorded by the Court word
to word which does not happen in the summary trial where only
substance of the evidence is to be recorded,
G Section 326(3) Cr.P.C. has no application. Accordingly, the
High Court held that re-trial for offence under Section 138 of
Negotiable instruments Act, 1881 could not be ordered on
mere ground of transfer of Magistrate.
43. Thus, there is patent illegality in the approach
H undertaken by the High Court in remanding the matter for a de
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1091
[N.V. RAMANA, J.]
novo trial mechanically on the ground of change of Magistrate, A
without proper appreciation of the material before it. Out of
three cases before us, in SLP (Crl.) No. 5623/2012 there is a
finding recorded by the High Court that the matter has been tried
summarily. In other two cases i.e. SLP (Crl.) No. 734/2013 and
SLP (Crl.) No. 3332/2012 there is finding on record that the B
cases have been heard by one Magistrate and judgment was
passed by another Magistrate, they were remanded back to
Trial Court for de novo trial even without inquiry whether they
were tried summarily or regularly. It seems from the impugned
orders that no thorough scrutiny was undertaken by the High c
Court concerned to ascertain whether cases have been actually
tried summarily or as summons cases.
44. There is no straight jacket formula to try the cases
falling under the N.I. Act. The law provided therefor is so flexible
that it is up to the prudent judicial mind to try the case D
'summarily' or otherwise. No doubt, the second proviso to
Section 143 of the Act specifies that in case the Magistrate
does not deem the case fit to try summarily, he shall record
an otder to that effect after hearing the parties. Just
because this directive is not followed scrupulously by the Trial E
Court would itself not vitiate the entire trial and the appellate
Court should not direct for a de novo trial merely on the ground
that the Trial Court had not recorded the order for not trying the
case summarily.
F
45. This Court in Bharati Tamang Vs. Union of India and
Ors. 2014 CriLJ 156 observed that at times of need where this
Court finds that an extraordinary or exceptional
circumstance arise and the necessity for reinvestigation
would be imperative in such extraordinary cases even de G
novo investigation can be ordered.
46. In BabubhaiVs. State of Gujarat and Ors. (2010) 12
SCC 254, this Court observed:
"Thus, it is evident that in exceptional circumstances, the H
1092 SUPREME COURT REPORTS [2014] 10 S.C.R.
A court in order to prevent the miscarriage of criminal justice,
if considers necessary, may direct for investigation de
novo wherein the case presents exceptional
circumstances."
47. The de novo trial of entire matter which should be
B
ordered in exceptional and rare cases only when such course
of fresh trial becomes indispensable to avert failure of justice
[See Mohd. Hussain @ Julfikar Vs. State (Govt. of NCT of
Delhi) (2012) 9 SCC 408, State of M.P. Vs. Bhooraji & Ors.
(2001) 7 SCC 679 and Ganesha v. Sharanappa & Anr. (2014)
C 1 sec 87]. Hence, de novo trial is only for exceptional cases
when the finding of acquittal is on a total misreading and
perverse appreciation of evidence.
48. The High Court in the present cases remanded the
D matters for de novo trial on the basis of flawed application of
Nitinbhai's case, in spite of the fact that these cases are
pending for over a decade. It went unnoticed by the High Court
that the appellants have raised the plea of mode of trial due to
change of Magistrate for the first time before the High Court.
E The same has not been raised when the change of Magistrate
took place in the Court below during the course of trial. This
clearly shows that only for the purpose of protracting the
litigation, the plea has been taken for the first time. Had it been
their case that because of the procedure adopted by the Court
F substantial miscarriage has taken place, they would have raised
this plea at a much early stage of the proceedings.
49. 'Speedy trial' and 'fair trial' to a person accused of a
crime are integral part of Article 21 of the Constitution of India.
There is, however, qualitative difference between the right to
G speedy trial and the accused's right of fair trial. Unlike the
accused's right of fair trial, deprivation of the right to speedy
trial does not per se prejudice the accused in defending himself.
The right to speedy trial is in its very nature relative. It depends
upon diverse circumstances. Each case of delay in conclusion
H of a criminal trial has to be seen in the facts and circumstances
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1093
[N.V. RAMANA, J.]
of such case. Mere lapse of several years since the A
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The
factors concerning the accused's right to speedy trial have to
be weighed vis-a-vis the impact of the crime on society and
the confidence of the people in judicial system. Speedy trial B
secures rights to an accused but it does not preclude the rights
of public justice. The nature and gravity of crime, persons
involved, social impact and societal needs must be weighed
along with the right of the accused to speedy trial and if the
balance tilts in favour of the former the long delay in conclusion c
of criminal trial should not operate against the continuation of
prosecution and if the right of accused in the facts and
circumstances of the case and exigencies of situation tilts the
balance in his favour, the prosecution may be brought to an end.
These principles must apply as well when the appellate Court 0
is confronted with the question whether or not retrial of an
accused should be ordered [See Mohd. Hussain @ Julfikar
Ali Vs. State of Delhi (AIR 2013 SC 3860)].
50. The Constitution Bench of this Court in Abdul Rehman
Antulay & Ors. Vs. R.S. Nayak & Anr. (1992) 1 SCC 225 E
considered right of an accused for speedy trial in the light of
Article 21 of the Constitution and various provisions of the
Code. The Constitution Bench also extensively referred to the
earlier decisions of this Court in Hussainara Khatoon & Ors.
(/) Vs. Home Secretary, State of Bihar (1980) 1 SCC 81, F
Hussainara Khatoon & Ors. (Ill) Vs. Home· Secretary, State
of Bihar, Patna (1980) 1 SCC 93, Hussainara Khatoon & Ors.
(IV) Vs. Home Secretary, State of Bihar, Patna (1980) 1 SCC
98 and Raghubir Singh & Ors. Vs. State of Bihar (1986) 4
sec 481 and noted that the provisions of the Code are G
consistent with the constitutional guarantee of speedy trial
emanating from Article 21.
51. In Mohd. Hussain Vs. State (Govt. of NCT of Delhi),
(2012) 9 SCC 408, this Court observed:
H
1094 SUPREME COURT REPORTS [2014] 10 S.C.R.
A "A de novo trial or retrial of the accused should be
ordered by the appellate court in exceptional and rare
cases and only when in the opinion of the appellate court
such course becomes indispensable to avert failure of
justice. Surely this power cannot be used to allow the
s prosecution to improve upon its case or fill up the lacuna.
A retrial is not the second trial; it is continuation of the
same trial and same prosecution .... the appeal court must
closely keep in view that while protecting the right of an
accused to fair trial and due process, the people who seek
c protection of law do not lose hope in legal system and the
interests of the society are not altogether overlooked."
52. This Court in Mehsana Nagrik Sahkari Bank Ltd.
observed that where evidence in case is recorded in full and
not in a summary manner, it is not fit to direct de novo trial on
D transfer of Magistrate.
53. In Satyajit Banerjee Vs. State of WB. (2005) 1 SCC
115, a two-Judge Bench of this Court was concerned with an
appeal by special leave wherein the appellant-accused were
E charged for the offences punishable under Sections 498-A and
306 of the Penal Cede. The trial court acquitted the accused
persons. In revision preferred by the complainant, the High
Court set aside the order of acquittal and directed a de novo
- trial_of the accused. While dealing with the revisional jurisdiction
F of the High Court in a matter against the order of acquittal, the
Court observed that such jurisdiction was exercisable by the
High Court only in exceptional cases where the High Court finds
defect of procedure or manifest error of law resulting in flagrant
miscarriage of justice. In the facts of the case, this Court held
G that the High Court ought not have directed the trial court to hold
de novo trial.
~
. 54. The procedure being followed presently by learned
Magistrates dealing cases under Section 138 of N.I. Act is not
commensurate with the summary trial provisions of Cr.P.C. and
H
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1095
[N.V. RAMANA, J.]
N.l. Act. due to which the cases under Section 138 of N.I. Act A
are taking unnecessary long time and the complaints remain
pending for years together [See Rajesh Agarwal Vs. State &
Anr. 171(2010) DLT 51].
55. In the present cases on hand, without strong, cogent,
B
unimpeachable evidence on record that cases were tried
'summarily' but not as regular trial, the Court below gravely
erred in remanding them to the Trial Court for a de novo trial.
56. It is worthwhile to mention that in one of the present
cases, the Trial Court took about six years to acquit the C
accused and then High Court took about six and half years to
remit the matter to the Trial Court on a technical ground of mode
of trial i.e. being summary trial. Special Leave Petition against
the order of High Court has been filed on 28th April, 2012. Thus,
about 14 years have elapsed, without definitive determinative D
conclusion of the case on merits. Thus, the whole purport of
expeditious trial under N.I. Act has been preposterously
frustrated.
57. Thus, we are of the considered opinion that the Courts
E
while dealing with the matters under the N.I. Act should keep
in mind that the difference between summary and summons
trial for the purpose of N.I. Act is very subtle but has grave
repercussions in case of mistaken identification of trial which
is de novo trial in the light of Sec 326 (3) of the Code.
F
58. A de novo trial should be the last resort and that too
only when such a course becomes so desperately
indispensable. It should be limited to the extreme exigency to
avert "a failure of justice". Any omission or even the illegality in
the procedure which does not affect the core of the case is not G •
a ground for ordering a de novo trial. This is because the
appellate Court has got the plenary powers to revaluate and
reappraise the evidence and to take additional evidence on
record or to direct such additional evidence to be collected by
the Tria~Court. But to replay the whole laborious exercise after H
1096 SUPREME COURT REPORTS [2014] 10 S.C.R.
A erasing the bulky records relating to the earlier proceedings by
bringing down all the persons to the Court once again for
repeating the whole depositions would be a sheer waste of
time, energy and costs unless there is miscarriage of justice
otherwise. Hence the said course can be resorted to when it
B becomes imperative for the purpose of averting "failure of
justice". The superior Court which orders a de novo trial cannot
afford to overlook the realities and the serious impact on the
pending cases in trial courts which are crammed with dockets,
and how much that order would inflict hardship on many
c innocent persons who once took all the trouble to reach the
Court and deposed their versions in the very same case. The
re-enactment of the whole labour might give the impression to
the litigant and the common man that law is more pedantic than
pragmatic. Law is not an instrument to be used for inflicting
0 l)Ufferings on the people but for the process of justice
dispensation [See State of M.P. Vs. Bhooraji (2001) 7 SCC
679].
59. Thus, in summation, we are of the considered opinion
that the exercise of remitting the matter to Trial Court for de
E novo trial should be done only when the appellate Court is
satisfied after thorough scrutiny of records and then recording
reason for the same that the trial is not summons trial but
summary trial. The non-exhaustive list which may indicate the
difference between both modes of trial is framing of charges,
F recording of statement under sec 313 of the Code, whether trial
has been done in the manner prescribed under Sections 262-
265 of Cr.P.C, how elaborately evidence has been adduced
and taken on record, the length of trial etc. In summary trial, the
accused is summoned, his plea is recorded under sec 263 (g)
G of Cr.P.C. and finding thereof is given by the Magistrate under
Section 263 (h) of Cr.P.C. of his examination.
60. The ratio in Nitinbhai must not be followed
mechanically to remand matters to trial courts for de novo trial.
H There should be proper application of judicial mind and
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1097
[N.V. RAMANA, J.)
evidence on record must be thoroughly perused before arriving A
at any conclusion with regard to mode of trial.
61. However, to summarise and answer the issues raised
herein, following directions are issued for the Courts seized off
with similar cases: 8
1. All the subordinate Courts must make an endeavour
to expedite the hearing of cases in a time bound
manner which in turn will restore the confidence of
the common man in the justice delivery system.
When law expects something to be done within C
prescribed time limit, some efforts are required to
be made to obey the mandate of law.
2. The learned Magistrate has the discretion under
Section 143 of the N.I. Act either to follow a o
summary trial or summons trial. In case the
Magistrate wants to conduct a summons trial, he
should record the reasons after hearing the parties
and proceed with the trial in the manner provided
under the second proviso to Section 143 of the N .I.
E
Act. Such reasons should necessarily be recorded
by the Trial Court so that further litigation arraigning
the mode of trial can be avoided.
3. The learned Judicial Magistrate should make all
possible attempts to encourage compounding of F
offence at an early stage of litigation. In a
prosecution under the Negotiable Instruments Act,
the compensatory aspect of remedy must be given
priority over the punitive aspect.
G
4. All the sutiordinate Courts should follow the
directives of the Supreme Court issued in several
cases scrupulously for effective conduct of trials and
speedy disposal of cases. ·.
H
1098 · SUPREME COURT REPORTS [2014] 10 S.C.R.
A 5. Remitting the matter for de novo trial should be
exercised as a last resort and should be used
sparingly when there is grave miscarriage of justice
in the light of illegality, irregularity, incompetence or
any other defect which cannot be cured at an
B appellate stage. The appellate Court should be very
cautious and exercise the discretion judiciously
while remanding the matter for de novo trial.
6. While examining the nature of the trial conducted
by the Trial Court for the purpose of determining
c whether it was summary trial or summons trial, the
primary and predominant test to be adopted by the
appellate Court should be whether it was only the
substance of the evidence that was recorded or
whether the complete record of the deposition of
D the witness in their chief examination, cross
examination and re-examination in verbatim was
faithfully placed on record. The appellate Court has
to go through each and every minute detail of the
Trial Court record and then examine the same
E independently and thoroughly to reach at a just and
reasonable conclusion.
62. We, therefore, direct all the Criminal Courts in the
country dealing with cases falling under Section 138 of the N.I.
F Act to follow the above-mentioned procedure discussed in the
preceding paragraphs for speedy and expeditious disposal of
cases as per the purport of the Act.
63. In the light of the discussion made above, we are of
the considered opinion that the High Court failed to appreciate
G the evidence on record in its true perspective. T.he High Court
erred in arriving at a conclusion that the mode of trial in all these
matters was summary trial whereas the record of the trial Court
adequately shows that regular trial was undertaken in these
matters. Hence, in our considered opinion, the matters are
H required to be remanded back to the High Court for
J.V. BAHARUNI & ANR. v. STATE OF GUJARAT 1099
[N.V. RAMANA, J.]
consideration on merits. We make it clear, that we have not A
expressed any opinion on the merits of the cases. The High
Court should, by conducting an independent inquiry and by
reasoned order, dispose of the cases on their own merits as
expeditiously as possible, preferably within a period of three
months due to the fact that these cases are languishing for s
almost 14 years.
64. For the foregoing reasons, we allow the appeals, set
aside the impugned judgments passed by the High Court and
remand the matters to the High Court for consideration on C
merits.
Rajendra Prasad Appeals allowed.
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